Local government law

Local authority well-being powers

Local authorities and legal advisers are beginning to embrace the scope of the promotion of well-being powers foreshadowed in the White Paper 'Modern Local Government - In Touch with the People' (Cmnd 4014 1998) and brought into force by part 1 of the Local Government Act 2000, as part of the government's modernisation agenda.

By part I of the 2000 Act, local authorities have important powers in relation to performing a new role of community leadership.

Authorities are given 'power to do anything which they consider will achieve' the promotion or improvement of economic, social or environmental well-being of their area; whether for the benefit of their area or part of it, or for all or any persons resident or present in their area or part of it.

The power allows authorities to: incur expenditure; give financial assistance to any person; enter into arrangements and agreements with any person; co-operate with, or facilitate or co-ordinate the activities of any person; exercise on behalf of any person any functions of that person; and provide staff, goods, services or accommodation to any person.

Authorities may also work in partnerships for the benefit of persons outside their area, if they consider that it will achieve one or more objects of the power.

The power is wide and is only limited by the provisions of section 3, which prevents authorities from doing anything which is prohibited, restricted, or limited by other powers; raising money, whether by precepts, borrowing or otherwise; and doing anything specified by the secretary of state by order.

In exercising well-being powers, authorities must have regard to guidance issued by the secretary of state.

Paragraph 6 of the guidance provides: 'The government's purpose introducing the well-being power is to reverse that traditionally cautious approach, and to encourage innovation.'

However, in using well-being powers, authorities are required to have regard to a community strategy, although they may use well-being powers before a community strategy is in place.

The guidance on preparing a community strategy provides that 'the requirement in section 2(3) is intended to ensure that local authorities consider the impact that using the new power will have on achievement of the aims and objectives of the community strategy...

However, this does not mean that a council has to wait until its strategy is in place before using the well-being power' (paragraph 25) and that 'the need to take account of the community strategy does not mean that each and every use of the power must be referenced in the strategy' (paragraph 26).

The guidance on well-being powers provides, at paragraph 10, that 'the breadth of power is such that councils can regard it as a power of first resort'.

Rather than searching for a specific power elsewhere in statute to take a particular action, councils can instead look to the well-being power in the first instance and ask themselves:

- Is the proposed action likely to promote or improve the well-being in our area?

- Is the primary purpose of the action to raise money?

- Is it explicitly prohibited on the face of other legislation?

- Are there any explicit limitations on the face of the legislation?

If the answer to the first two questions is yes, and to the next two no, then the council can proceed with the proposed action.

The scope of the well-being power has been considered in a number of recent cases.

R(J) v London Borough of Enfield & Secretary of State for Health [2002] EWHC 432 (Admin); HLR 38, was a case concerned with powers under section 2 to provide financial assistance for acquiring accommodation for a family that had been denied assistance under section 21 of the National Assistance Act 1948 and the Children Act 1989.

Mr Justice Elias accepted the submissions of counsel for the secretary of state, and held that section 2 is capable of extending to the grant of financial assistance for acquiring accommodation, in the absence of any prohibition, restriction or limitation of the power contained in any other enactment: '[I]t [section 2] is drafted in very broad terms which provide a source of power enabling authorities to do many things which they could not hitherto have done.'

The Court of Appeal considered the section 2 power in the case of R(W) v London Borough of Lambeth [2002] EWCA Civ 613; HLR 41, and stated (obiter) that there was no prohibition, restriction or limitation in any other enactment that precluded a social services authority from providing financial help or temporary accommodation to the family of a child in need, if they think fit, using section 2 powers.

The power was considered further in R (Theophilus) v LB Lewisham [2002] EWHC 1371 (Admin), a case concerned with the power under section 2 to provide financial support for a student to study abroad.

The claimant accepted a place to study law at a college in Dublin, after the authority informed her that she would receive student support provided she studied anywhere in the European Union.

The authority subsequently informed her that it had made an error and she was not entitled to support under the Education (Student Support) Regulations 2001.

The claimant argued, among other things, that the authority had discretionary power under section 2 to provide support.

Following the approach of Mr Justice Elias in R (J) v London Borough of Enfield & Secretary of State for Health, Mr Justice Silber held that in the absence of any prohibition, restriction or limitation, the authority had the power under section 2 to give financial support to the claimant.

In rejecting the authority's arguments that the Teaching and Higher Education Act 1998 contained a prohibition, restriction or limitation, Mr Justice Silber stated: 'I cannot discover any suggestion in the 1998 Act that it is an exclusive and comprehensive form of funding for students so as to limit or restrict the funding powers of Lewisham...

section 2 of the 2000 Act is a free-standing and separate source of power given to local authorities.'

The most recent case is R (Khan) v Oxford County Council [2002] EWHC 2211 (Admin), in which Mr Justice Moses held that exclusion from assistance under section 21(1A) of the National Assistance Act 1948 was a prohibition, restriction or limitation, within the meaning of the 2000 Act, with the effect that an authority would not have power to provide assistance using powers under section 2, if the person was excluded from assistance under section 21(1A) of the 1948 Act (applying the test as set out in R v London Borough of Wandsworth, ex parte O [2001] 1 WLR 2539, CA).

The significant and important point to note from the judgments in these cases is that - in the absence of express prohibition, restriction or limitation - the scope of the well-being power is being construed by the courts in accordance with the government's expansive view of the power as conceived in the White Paper and set out the 2000 Act, and in guidance to the Act 'a power of first resort...

to reverse that traditionally cautious approach and to encourage innovation.'

By William Okoya, Arden Chambers, London